Julie Keir: Covid-19 – when is it automatically unfair to dismiss for health and safety reasons?

Julie Keir: Covid-19 – when is it automatically unfair to dismiss for health and safety reasons?

Julie Keir

We are now starting to see employment tribunals grappling with Covid-19 related workplace issues. Some of these involve claims from employees with less than two years’ service seeking to argue that their dismissals were automatically unfair for health and safety reasons, writes Julie Keir.

Automatically unfair dismissal for health and safety reasons

Section 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA), for which there is no need to have two years’ qualifying service, provides that a dismissal will be automatically unfair if the sole or principal reason for dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they:

Left or refused to return to their place of work (or proposed to do so), it not being reasonable to expect them to avert the danger; and/or

Took (or proposed to take) appropriate steps to protect themselves or others from the danger.

It is also unlawful to subject employees (and workers since 31 May 2021) to a detriment, such as a disciplinary sanction, for the same reasons.

In each of the cases outlined below the claimant did not have two years’ continuous service and so relied on section 100 to claim that their dismissal was automatically unfair.

Montanaro v Lansafe Limited

Mr Montanaro travelled to Italy for his sister’s wedding on 9 March 2020; subsequently both Italy and the UK went into lockdown and he was prevented from travelling home. He sent his employer information about the travel situation; asked for advice and assistance with documentation; and made it clear that he was available to work remotely. He received no response and was dismissed for failing to follow company procedures and taking unauthorised leave.

The employment tribunal found that Mr Montanaro had been automatically unfairly dismissed in terms of section 100 ERA. There were ‘circumstances of danger’ given the outbreak of the pandemic and the risk of catching a virus which could lead to serious illness or death. Mr Montanaro reasonably believed that the danger was ‘serious and imminent’; and had taken ‘appropriate steps’ to protect himself by asking for advice and offering to work remotely.

Accattatis v Fortuna Group

Mr Accattatis had raised concerns with his employer – a company selling and distributing PPE – about the fact that he felt uncomfortable commuting by public transport. He was later dismissed after refusing to attend work.

The tribunal accepted that Mr Accattatis had a reasonable belief that there were circumstances of ‘serious and imminent danger’ given the outbreak of the pandemic and the government announcements that Covid-19 posed a serious and imminent threat to public health. However, his claim of automatic unfair dismissal failed as he had not taken ‘appropriate steps’ to protect himself from danger by demanding furlough (which he didn’t qualify for as there was work available) or to work from home (which wasn’t feasible).

Gibson v Lothian Leisure

Mr Gibson, a chef, was worried about Covid-19 and passing it to his father who was clinically vulnerable. After raising concerns about lack of PPE and a non-secure Covid-19 working environment, he was dismissed.

The dismissal was found to be automatically unfair. The circumstance of danger was the growing prevalence of Covid-19 infections and the potential significant harm that could be done to Mr Gibson’s father should he contract the virus. Mr Gibson reasonably believed this to be ‘serious and imminent’ and, by raising the issue of PPE, he had taken an appropriate step to protect his father from the danger.

Julie Keir: Covid-19 – when is it automatically unfair to dismiss for health and safety reasons?

Julie Keir is a practice development lawyer at Brodies LLP
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